Citation Nr: 1808710 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 07-33 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating higher than 30 percent for chronic cervical spine musculotendinous strain, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran had active service from November 1990 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for a cervical spine condition and assigned a 0 percent rating effective December 27, 2005. That rating was increased to 30 percent in an August 2007 rating decision. By way of procedural background, the Board denied the Veteran's claim in April 2011. The Veteran appealed that denial to the U.S. Court of Appeals for Veterans Claims (Court), which remanded the matter back to the Board in January 2012 pursuant to a Joint Motion for Partial Remand (JMPR). The Board then remanded the matter for additional development in August 2012. In March 2013, the Board again denied the claim, and the Veteran again appealed to the Court. Pursuant to a December 2013 JMPR, the Court remanded the matter back to the Board, which issued another denial in September 2014. The Veteran again appealed, and the Court remanded the matter back to the Board by way of a December 2015 memorandum decision. The issue was most recently remanded in July 2017. It is further noted that the Veteran has recently perfected an appeal with respect to the issues of (1) entitlement to an earlier effective date for evaluations assigned for left upper extremity radiculopathies; (2) entitlement to service connection for a tempomandibular joint disability; (3) entitlement to service connection for a left distal bicep disability; and (4) entitlement to service connection for nerve damage of the trigeminal nerve. However, these issues are in a separate appeal stream, and such appeal has not yet been certified to the Board. Therefore, the Agency of Original Jurisdiction (AOJ) retains jurisdiction on these claims until such time as certification of the appeal to the Board is completed. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, this case was returned to the Board from a December 2015 Court Memorandum Decision. The most recent Board determination in July 2017 remanded the issue on appeal in order to allow the AOJ to readjudicate the Veteran's claim, to include consideration of the July 2016 VA examination and any other pertinent evidence. No additional development was requested by the Board at that time. Notably, the December 2015 Court Memorandum Decision concluded that the Board provided an inadequate statement of reasons or bases for relying on a September 2012 VA examination as evidence that the Veteran was not entitled to a disability rating in excess of 30 percent for his cervical spine disability. Specifically, the Court indicated that the September 2012 VA examiner found that the Veteran suffered functional loss as a result of pain after repetitive use, but made no effort to quantify the amount of functional loss. The Court stated that it was "unclear why the Board did not return this examination for clarification." Following the December 2015 Memorandum Decision, the AOJ afforded the Veteran another VA examination in July 2016. However, although the examiner indicated that the Veteran had pain on examination that caused functional loss, the examiner did not quantify the amount of functional loss. Further, during the examination, the Veteran reported recurrent neck pain and decreased range of motion that impacted his ability to turn his head and/or look up or down in a normal manner. In order for the Veteran to obtain the next-higher 40 percent rating, the General Rating Formula for diseases and injuries of the spine requires unfavorable ankylosis of the cervical spine. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See Note 5, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a (2017). On remand, the Board finds that the Veteran should be afforded a new VA cervical spine examination that specifically addresses the rating criteria, specifically to include for unfavorable ankylosis. Additionally, the examiner should specifically address whether the Veteran suffers functional loss as a result of pain after repetitive use, and whether such functional loss more nearly approximates or is the functional equivalent of unfavorable ankylosis of the cervical spine. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an additional VA examination to ascertain and evaluate the current level of severity of the cervical spine disability. The examiner should review the claims file in conjunction with the examination. Any medically indicated special tests should be accomplished. The examiner is specifically asked to address the following: (a) Identify all current manifestations of the Veteran's service-connected cervical spine disability. (b) Clarify the presence of ankylosis of the cervical spine, or the equivalent thereof (i.e., range of motion is so diminished, to include after repetitive use testing or during a flare-up as a result of pain and other factors, that it is the functional equivalent of ankylosis). NOTE: During the July 2016 VA examination the Veteran reported recurrent neck pain and decreased range of motion that impacted his ability to turn his head and/or look up or down in a normal manner. (c) Specifically indicate whether the Veteran's ankylosis of the cervical spine is unfavorable or favorable. (d) If unfavorable ankylosis is identified, the examiner should indicate, with supportive evidence, whether the Veteran's cervical spine disability results in one or more of the following: (i) difficulty walking because of a limited line of vision; (ii) restricted opening of the mouth and chewing; (iii) breathing limited to diaphragmatic respiration; (iv) gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; (v) atlantoaxial or cervical subluxation or dislocation; or (vi) neurologic symptoms due to nerve root stretching. See Note 5, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a (2017). The medical and lay evidence of record should be taken into account and a rationale must be provided for any opinion expressed, to include reference to pertinent evidence where appropriate. If any inquiry cannot be addressed, the examiner should provide a complete explanation as to why it cannot be addressed. 2. After the development has been completed to the extent possible, adjudicate the claim, to include consideration of whether an extraschedular rating in excess of 30 percent is warranted for the Veteran's cervical spine disability. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).